Dweck v. City of Miami Springs et al
ORDER denying 112 Plaintiff's motion to alter judgment. Signed by Judge Kathleen M. Williams on 10/14/2020. See attached document for full details. (clu)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:18-cv-23320-KMW
CITY OF MIAMI SPRINGS, et. al
ORDER ON PLAINTIFF’S MOTION TO ALTER JUDGMENT
THIS MATTER is before the Court on Plaintiff’s, Christopher Dweck, motion to
alter judgment pursuant to Rule 59(e), or in the alternative, motion for reconsideration
pursuant to Rule 60. (DE 112.) The City filed a response in opposition (DE 113) and
Plaintiff filed a reply (DE 114). For the reasons discussed below, the motion (DE 112) is
GRANTED IN PART and DENIED IN PART.
This action arises from the termination of Dweck from his employment as a police
officer for the City of Miami Springs (“City”) after he tested positive for drug use following
his involvement in a “hit-and-run” car accident. Plaintiff was given two opportunities to
amend his complaint and redress any deficiencies. However, on August 19, 2020, the
Court closed the case after dismissing all claims, finding that four out of the six counts
could not survive a motion to dismiss.
The Court assumes familiarity with the facts and procedural history of the case, which are
summarized in the August 19, 2020 Omnibus Order (DE 109).
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Plaintiff originally filed this lawsuit on August 15, 2018. In the first complaint,
Dweck asserted four counts. (DE 1.) In Count I, he raised a 42 U.S.C § 1983 claim
against the City based on its alleged failure to adequately train or supervise police officers.
In Count II, Dweck asserted a Section 1983 claim against defendant Sandoval for
subjecting him to an unlawful search. In Count III, Plaintiff asserted a claim against an
unknown officer for disseminating his medical records. In Count IV, Plaintiff asserted a
claim for declaratory relief against the City.
On November 16, 2018, Plaintiff filed an amended complaint that made significant
changes to the first complaint. (DE 14.) For instance, in Count I, Dweck alleged that the
City violated his due process rights by terminating him in violation of the Collective
Bargaining Agreement and abandoned his inadequate training and supervision theory.
In Count II, Dweck alleged that defendant Sandoval violated his Due Process rights by
terminating him in violation of the Collective Bargaining Agreement. However, he did not
allege, as he did in the first complaint, that Sandoval subjected to him an unlawful search.
Dweck also abandoned his claim against the unknown officer and reasserted his
declaratory relief claim against the City, this time in Count III. On September 12, 2019,
the Court granted the Defendants’ motions to dismiss and allowed Plaintiff one final
opportunity to amend his complaint. (DE 34.)
On October 7, 2019, Plaintiff filed his Second Amended Complaint, which added
several new counts and named two new defendants. (DE 43.) Plaintiff also changed the
basis for his Section 1983 claims against the City and Sandoval. Dweck asserted claims
against two new defendants, Guzman and Gurney, who were named in the lawsuit over
two months after the Scheduling Order’s deadline to seek leave to join parties had
passed. In Count V, Plaintiff raised a new breach of contract claim against the City,
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alleging that it materially breached the Collective Bargaining Agreement by terminating
him for a first-time positive drug test. Plaintiff characterized this claim as arising under
state law and explained that “[t]his Court has pendant jurisdiction over a state breach of
contract claim as it arises from the same common nucleus of facts as the federal
constitutional questions.” (Id. at 13.)
On August 19, 2020, this Court issued an omnibus order granting Defendants’
motions to dismiss as to Counts II-IV and VI and granting the City’s motion for summary
judgment as to Count I. (DE 109.) With the Section 1983 claims dismissed, the Court
declined to exercise supplemental jurisdiction over the breach of contract claim pursuant
to 28 U.S.C. § 1367(c)(3) and dismissed it without prejudice. On August 25, 2020, the
Court entered final judgment in favor of the City and Sandoval. (DE 111.)
On September 2, 2020, Plaintiff filed the instant motion requesting that the Court
vacate the dismissal of Count V pursuant to Rules 59(e) and 60. (DE 112.) He claims
that it was improper for the Court to decline to exercise supplemental jurisdiction over this
claim because it arises under federal law. He explains that “[d]espite the complaint
labeling Mr. Dweck’s breach of contract as a ‘state law’ claim, his cause of action is
undoubtedly a federal claim.” (Id. at 5.) Plaintiff contends that because his breach of
contract claim is based on the City’s alleged breach of the Collective Bargaining
Agreement, it is preempted by the Labor Management Relations Act § 301 (“Section 301”)
and is therefore actually a federal claim.
In its response, the City explains that throughout this litigation, Plaintiff has
consistently characterized Count V as a state law claim. It notes that Count V was pled
as a state breach of contract claim in the Second Amended Complaint and that Dweck
continued to represent it as such in his motion for summary judgment. The City explains
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“Plaintiff has never asserted that federal labor principles apply and has never otherwise
suggested or articulated that federal question jurisdiction exists over Count V.” (DE 113
at 7.) The City argues that it is improper for Dweck to identify Count V as a federal claim
at this juncture, because a party may not change his theory of the case or present new
arguments in a Rule 59(e) or Rule 60 motion.
Rule 59(e) of the Federal Rules of Civil Procedure provides that a party subject to
an adverse judgment may file a motion to alter or amend such judgment. A motion
pursuant to Rule 59(e) must demonstrate why the court should reconsider its prior
decision and “set forth facts or law of a strongly convincing nature to induce the court to
reverse its prior decision.” Perez v. Palermo Seafood, Inc., 2008 WL 7505704, at *1 (S.D.
Fla. May 8, 2008) (citations omitted). “The decision whether to grant or deny a Rule 59(e)
motion is discretionary.” Id. “Generally, there are three grounds justifying reconsideration
of an order: (1) an intervening change in controlling law; (2) availability of new evidence;
and (3) the need to correct clear error or manifest injustice.” Id.; see also Abanto v. Hayt,
Hayt & Landau, P.L., 2012 WL 5058737, at *1 (S.D. Fla. Oct. 18, 2012).
Under Rule 60(b), the Court may relieve a party from a final judgment or order for
the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. Rule 60(b).
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It is inappropriate for the Court to consider new arguments raised for the first time
in a Rule 59(e) or Rule 60 motion. See Michael Linet, Inc. v. Vill. of Wellington, Fla., 408
F.3d 757, 763 (11th Cir. 2005); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957
(11th Cir. 2009).
The City argues that Plaintiff’s motion should be denied because it is based on an
argument that was not previously asserted. It contends that because Dweck did not
previously characterize his state breach of contract claim as a federal claim, he may not
do so for the first time now. 2 The Court need not decide whether this argument is waived
because even if Count V arises under federal law as Plaintiff claims, Dweck is not entitled
to his requested relief of the reinstatement of this claim.
Section 301 provides for federal jurisdiction of disputes arising under collective
bargaining agreements. This provision preempts all state law claims that “either arise[ ]
out of a CBA or is dependent upon the meaning of a CBA.” Atwater v. Nat'l Football
League Players Ass'n, 626 F.3d 1170, 1177 (11th Cir. 2010); see also Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 220–21 (1985). Section 301 governs all claims “founded
directly on rights created by collective-bargaining agreements, and also claims
‘substantially dependent on analysis of a collective-bargaining agreement.’” Caterpillar
Inc. v. Williams, 482 U.S. 386, 394 (1987) (citation omitted). Thus, “state law does not
It is true that Plaintiff did not previously identify his breach of contract claim as a federal claim.
However, in light of the complete preemption doctrine, the Court is reluctant to find that this
argument is waived. Plaintiff was not required to affirmatively plead this claim as arising under
federal law in his second amended complaint or in a previous submission for it to be considered
a Section 301 claim. See Baptist Hosp. of Miami, Inc. v. Timke, 832 F. Supp. 338, 340 (S.D. Fla.
1993) (“An exception to the well-pleaded complaint rule, known as ‘the complete preemption
doctrine,’ applies when ‘the preemptive force of a statute is so ‘extraordinary’ that it ‘converts an
ordinary state common-law complaint into one stating a federal claim for purposes of the wellpleaded complaint rule.’”) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987)).
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exist as an independent source of private rights to enforce collective bargaining
contracts.” Id. (internal citation and brackets omitted). “The preemptive force of § 301 is
so powerful as to displace entirely any state cause of action ‘for violation of contracts
between an employer and a labor organization.’ Any such suit is purely a creature of
federal law, notwithstanding the fact that state law would provide a cause of action in the
absence of § 301.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr.
for S. California, 463 U.S. 1, 23 (1983).
The Court finds that Count V is preempted by Section 301 because it is based on
the City’s alleged breach of the Collective Bargaining Agreement.
“Defendant Miami Springs materially breached the Collective Bargaining Agreement by
terminating Plaintiff Dweck for a first-time positive drug test rather than allowing him to
exercise his right to be placed in the Employee Assistance Program and treatment.” (DE
43 at 13.) See Roberts v. Walt Disney World Co., 908 F. Supp. 913, 916 (M.D. Fla. 1995)
(“federal labor law preempts state law actions alleging breach of a collective bargaining
Because Count V is preempted under Section 301, in his motion to
reconsider Plaintiff correctly identifies the claim as arising under federal law, even though
it was originally characterized and consistently pled as a state law claim. 3 See Caterpillar
Inc., 482 U.S. at 393 (“Once an area of state law has been completely pre-empted, any
claim purportedly based on that pre-empted state law is considered, from its inception, a
federal claim, and therefore arises under federal law.”).
Accordingly, the Court amends the omnibus order by VACATING the dismissal of Count V
pursuant to 28 U.S.C. § 1367(c)(3). However, as discussed infra, Count V remains DISMISSED
WITHOUT PREJUDICE as preempted under Section 301.
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When a court determines that a state law claim is preempted by Section 301, it
has the discretion to either: (1) convert it into a Section 301 claim and allow it to proceed
as such or (2) dismiss it as preempted. The Supreme Court has explained, “when
resolution of a state-law claim is substantially dependent upon analysis of the terms of an
agreement made between the parties in a labor contract, that claim must either be treated
as a § 301 claim, or dismissed as pre-empted by federal labor-contract law.” See AllisChalmers Corp. v. Lueck, 471 U.S. 202, 220–21 (1985); Bommicino v. Gen. Motors, LLC,
2012 WL 1029389, at *6 (N.D. Ga. Mar. 26, 2012) (“Where preemption applies, the Court
may either recharacterize the claim as a Section 301 claim, or dismiss the claim as
preempted.”). Courts have routinely dismissed state law claims that are preempted by
Section 301. See Roberts, 908 F. Supp. at 916 (“The Court dismisses the second count,
because federal labor law preempts state law actions alleging breach of a collective
bargaining agreement.”); Gen. Prods., LLC v. I.A.T.S.E. Local 479, 981 F. Supp. 2d 1357,
1365 (N.D. Ga. 2013); see also Instituto de Prevision Militar v. Lehman Bros., 485 F.
Supp. 2d 1340, 1347 (S.D. Fla. 2007) (sua sponte dismissing a preempted state law
Because of statute of limitation concerns, Plaintiff urges the Court to reinstate
Count V and allow it to proceed as a recharacterized Section 301 claim. He contends
that he is barred from refiling this claim in another judicial forum in light of the Labor
Management Relations Act’s six-month statute of limitations. (DE 43.) This argument is
untenable because the six-month limitations period only applies to “hybrid” claims, which
comprise of “two causes of action.” Coppage v. U.S. Postal Serv., 281 F.3d 1200, 1204
(11th Cir. 2002) (citing Delcostello v. International Brotherhood of Teamsters, 462 U.S.
151 (1983)). “The first cause of action involved is against the employer for breach of the
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collective bargaining agreement.” Id. “The second claim is against the union for breach
of the union’s duty of fair representation.” Id.
Here, Count V is not a “hybrid” claim because Plaintiff has not alleged that the
union breached its duty of fair representation. See Moon v. Goodyear Tire & Rubber Co.,
2012 WL 4479249, at *5 (N.D. Ala. Sept. 25, 2012), aff'd sub nom. Moon v. Goodyear
Tire & Rubber Co., 519 F. App'x 620 (11th Cir. 2013) (“Mr. Moon’s claims against
Goodyear contained in the Amended Complaint do not plead a fair representation claim
against the union. Because Mr. Moon’s claims against Goodyear are not a § 301 hybrid
claim, the six month statute of limitations does not apply.”); Davis v. Asti, Inc., 180 F.
Supp. 2d 1314, 1319 (S.D. Fla. 2001) (“If Plaintiff's § 301 claims are based only on
contractual duties, and are not dependent on federal labor law, then they are governed
by the state statute of limitations. If, on the other hand, Plaintiff's claims depend on
showing that the Union breached its federally-imposed duty of fair representation, then
the applicable statute of limitations is that provided in § 10(b) of the National Labor
Relations Act.”); see also Ta v. Gen. Dynamics-Convair, 937 F.2d 614 (9th Cir. 1991).
Because Plaintiff’s claim is not “hybrid,” but a straightforward claim for breach of the
Collective Bargaining Agreement by the City, it is governed by Florida’s four-year statute
of limitations for breach of contract. See King v. Bencie, 806 F. App'x 873, 875 (11th Cir.
2020). Accordingly, Plaintiff is not time-barred from pursuing this claim in another forum.
Putting aside his statute of limitation argument, Dweck has advanced no other
reason why the Court should reinstate Count V. Plaintiff had the opportunity to amend
his complaint twice; in the order dismissing the first amended complaint, the Court made
clear that he was being given one final opportunity. (DE 34.) Nonetheless, Plaintiff pled
Count V simply as a “state breach of contract claim.” (DE 43 at 12.) Not only has Plaintiff
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failed to articulate that his claim is governed by Section 301, he has also failed to allege
in the Second Amended Complaint that he has either fully exhausted the contractual
remedies under the Collective Bargaining Agreement or that an exception to Section
301’s exhaustion requirement applies. See, e.g., Jackson v. First Student Mgmt., LLC,
2017 WL 10874175, at *6 (M.D. Fla. Apr. 20, 2017) (declining to recharacterize
preempted state law claims as Section 301 claims and dismissing them without prejudice
because the complaint failed to sufficiently allege exhaustion of contractual remedies);
Rael v. Smith's Food & Drug Centers, Inc., 2016 WL 10179339, at *6 (D.N.M. Sept. 19,
2016), aff'd, 712 F. App'x 802 (10th Cir. 2017) (same); Osan v. Verizon Fla. LLC, 2016
WL 2745001, at *3 (M.D. Fla. May 11, 2016) (“an employee must exhaust the grievance
procedures provided in a CBA before bringing a claim under Section 301 of the LMRA.”).
Consequently, the Court finds that reinstating the action pursuant to a recharacterized
Section 301 claim at this juncture would not be appropriate. Therefore, Count V of the
Second Amended Complaint remains DISMISSED WITHOUT PREJUDICE.
DONE AND ORDERED in Chambers in Miami, Florida, this 14th day of October,
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